that Defense Counsel may make this declaration of
"guilty" or "not guilty" for the defendant, and
even if this were admissible, Defense Counsel would not be able to
make this declaration because he had no opportunity to come to any
understanding with the defendant.

Finally, the accused, who is not present, cannot
exercise his right of a final plea.

The Charter, which has decreed so many and such
decisive regulations for the rights of the defendant, thereby
recognizes that the personal exercise of these rights which were
granted to the accused is an important source of knowledge for the
finding of an equitable judgment, and that a trial against such a
defendant, who is incapable of exercising these rights through no
fault of his own, cannot be recognized as a just procedure in the
sense of Article 12.

I should like to go further, however, by saying
that the procedure in absentia against Krupp, would be contrary to
justice, not only according to the provisions of the Charter but also
according to the generally recognized principles of the law of
procedure of civilized states.

So far as I am informed, no law of procedure of a
continental state permits a court procedure against somebody who is
absent, mentally deranged, and completely incapable of arguing his
case. According to the German Law of Procedure, the trial must be
postponed in such a case (Paragraph 205 of the German Code of
Criminal Law). If prohibiting the trial of a defendant, who is
incapable of being tried, is a generally recognized principle of
procedure (principe général de droit reconnu par des
nations civilisées) in. the sense of Paragraph 38 (c) of the
Statute of the International Court in The Hague, then a tribunal upon
which the attention of the whole world is, and the attention of
future generations will be directed, cannot ignore this prohibition.

The foreign press, which in the last days and
weeks has repeatedly been concerned with the law of the Charter,
almost unanimously stresses that the formal penal procedure must not
deviate from the customs and regulations of a fair trial, as is
customary in civilized countries; but it does not object, as far as
the penal code is concerned, to a departure from the principles
recognized heretofore, because justice and high political
considerations demand the establishment of a new international
criminal code with retroactive effect in order to be able to punish
war criminals. I wish to add another point here, which may be
important for the decision on the question discussed. This High Court
would naturally not be able to acquire an impression of the
personality of Krupp, an impression which in such an extraordinarily
significant trial is a valuable means of perception, which cannot be
underestimated for the judgment of the incriminating evidence. If, in
the